We recently hosted a webinar with Kate Kozowyk, a partner at SVR Lawyers, who specializes in condominium law. The session aimed to educate attendees on understanding bylaws and navigating tenant and owner challenges within condominiums.

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Presentation by Kate Kozowyk, Partner, SVR Lawyers

Kate’s legal practice focuses on professional negligence matters, condominium law and personal injury matters, including social and commercial host liability. She has appeared at all levels of Court in Alberta, including the Alberta Court of Appeal and has been involved in an Application for Leave to Appeal to the Supreme Court of Canada.

Kate A.C. Kozowyk
Partner

Kate acts for individuals, boards of directors, property managers and developers with respect to various condominium matters, including insurance claims, bylaw creation and interpretation, bylaw enforcement and condominium disputes.

Importance of Condominium Bylaws

Condominium bylaws are legally enforceable and bind all owners and tenants. They regulate the control, management, and administration of units and common property. Section 32 of the Condominium Property Act outlines the importance of bylaws in regulating the corporation and managing units and common property.

Kate discussed the different types of bylaws, including default bylaws provided by the Condominium Property Regulation and those registered by developers. She emphasized the importance of updating bylaws regularly to ensure they reflect current legislative changes and case law.

The webinar highlighted the hierarchy of documents governing condominium complexes:

Legislation: The Condominium Property Act and Regulation are the most binding documents.
Condominium Plan: Defines unit boundaries and common property.
Bylaws: Must be registered with the Land Titles Office to be binding.
Board Rules and Policies: Can be created by the board, but cannot be used to impose fines.

Kate recommended updating bylaws every 10-15 years to reflect the current law and best practices. She listed the top reasons for updating bylaws, including changes in legislation, language updates, age restrictions, cannabis legalization, Airbnb regulations, pet issues, electronic meetings and voting, plan conflicts, rules and policies, and case law updates.

SVR Lawyers – Top 10 Reasons to Update Your Bylaws

Handling Bylaw Violations

Kate outlined a step-by-step approach to dealing with bylaw violations:

Issuing Warning Letters: The first step involves sending a notice of proposed sanction, and allowing the violator time to respond or comply.
Fines: If the violation continues, fines can be issued, starting with reasonable amounts and increasing incrementally.
Court Action: Persistent violations may lead to civil claims or court applications for eviction.

SVR Lawyers – Step by step approach to deal with bylaw violations

Evicting tenants involves issuing a Section 54 notice, which requires a full calendar month for the tenant to vacate. If the tenant does not comply, the board can bring a Section 55 application for an order to give up possession. A Section 56 application can be brought for immediate eviction in severe cases.

Evicting an owner is more complex and requires documentation of repeated bylaw violations. The board must bring a court application under Section 67 for an order declaring that the owner is breaching the bylaws and must cease and desist. If violations continue, the board can return to court to request vacant possession of the unit.

Evidence for Court Applications

Kate stressed the importance of compiling comprehensive evidence for court applications. This includes photos, written complaints, and affidavits from affected parties. Affidavits must be detailed, and supporting documentation must be provided for bylaw breaches.

Affidavits must be sworn by board members and affected parties. They become public record and can be subject to cross-examination by the alleged violator or their lawyer. Kate emphasized the importance of thorough documentation and legal support to ensure successful court applications.

Questions & Answers

If bylaws have a clause for fines but do not stipulate the fine structure, can a policy be added to specify the fine structure?

Answer: Yes, a policy can be added to specify the fine structure as long as it aligns with the maximums under the Condominium Property Act and the Regulation. However, it is not necessary to have a fine structure; the board can choose the fine amount at any time, provided it is reasonable and within the legal limits.

Does the act allow a condo corporation to charge interest on past due monetary sanctions if this provision is added to their bylaws?

Answer: Yes, if the bylaws include the language allowing for interest on past due monetary sanctions, the corporation can charge interest. However, interest cannot be charged retroactively on sanctions levied before the bylaws were updated.

What can a board do for suspected drug dealing or criminal activities, besides filing a police complaint or report?

Answer: In addition to filing police complaints, the board can issue fines for bylaw violations and get in touch with the Safer Communities and Neighborhoods (SCAN) unit. SCAN can use legal sanctions and court orders to hold owners accountable for illegal activities on their property. Documenting all incidents thoroughly is also crucial.

If an owner had prior approval from the previous board to put up a screen for a pet issue, who is responsible for providing the documentation when the current board does not recognize the prior approval?

Answer: The owner is responsible for providing the documentation of prior approval. It is essential for owners to keep written consent for any modifications. If the owner does not have the documentation and the new board does not recognize the prior approval, it can be challenging to prove the approval was granted.

Is nonpayment of regular monthly condo fees a bylaw violation, or is it considered something else?

Answer: Nonpayment of regular monthly condo fees is both a bylaw violation and a financial issue. The bylaws require owners to make these contributions. The board can file a caveat against the unit and start foreclosure proceedings if the fees are not paid.

If a condo unit is sold, can unpaid sanctions still be recovered from the sale?

Answer: This depends on the specific bylaw language and whether the unpaid sanctions were included in the estoppel certificate. If the bylaws state that unpaid fees form a contribution owing, they should be recoverable from the sale proceeds. However, courts have not been consistent in their rulings on this matter.

How should a board handle owners who constantly break policy and rules when they can’t impose financial sanctions?

Answer: The board should ensure that the rules and policies are detailed and practical. If the rules and policies are expanding on existing bylaws, the board can enforce them as bylaw violations. However, if they are entirely new, the board needs to update the bylaws to include these rules and policies. Engaging owners through town halls and other means to pass the updated bylaws is crucial.

Is it acceptable to send a warning letter to a board member for continuous breach of bylaws, and can this warrant a termination or review of their status on the board?

Answer: This depends on the bylaws. Updated bylaws often include provisions that a board member effectively resigns their position if they are in violation of the bylaws for a certain period. The specific bylaws will dictate the process for reviewing or terminating a board member’s status.

What should be the approach to an owner in breach of bylaws who does not provide email nor accepts registered mail by bylaw letters?

Answer: The board should comply with the notice provisions in the Condominium Property Act. If the owner refuses email and registered mail, the board can send notices by regular mail and document all attempts to deliver the notices. Keeping records of returned mail and any other attempts to communicate is essential for court applications.

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Jessica Davies

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